Successive Applications For Recalling Witnesses Should Not Be Encouraged: SC [Read Judgment]
"Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier is not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed."
The Supreme Court has observed that filing of successive applications for recall of a witness under Section 311 of the Code of Criminal Procedure should not be encouraged.
The Bench comprising of Justice AK Sikri and Justice S. Abdul Nazeer in Swapan Kumar Chatterjee vs. CBI, were considering the appeal against a Calcutta High Court order which upheld the Trial Court order allowing the application filed by the prosecution for summoning a hand writing expert in a corruption case, the trial of which started in 1985!
It was in March 2004, the prosecution had filed the petition praying for examination of handwriting expert Mr. H.S. Tuteja. This application was allowed, but he did not appear on the fixed date. The prosecution's request for more time was accepted by magistrate, but even then he did not appear on the next date.
"Interestingly, this practice has been going on unopposed for a period of thirteen years starting from the year 2004." observed the bench.
Referring to Section 311 of the Code, the bench said that the power conferred therein should be invoked by the court only to meet the ends of justice. It said:
The power is to be exercised only for strong and valid reasons and it should be exercised with great caution and circumspection. The court has vide power under this Section to even recall witnesses for reexamination or further examination, necessary in the interest of justice, but the same has to be exercised after taking into consideration the facts and circumstances of each case. The power under this provision shall not be exercised if the court is of the view that the application has been filed as an abuse of the process of law
Referring to the adjournments sought and successive applications filed in this case, the court further added:
"Where the prosecution evidence has been closed long back and the reasons for non-examination of the witness earlier is not satisfactory, the summoning of the witness at belated stage would cause great prejudice to the accused and should not be allowed. Similarly, the court should not encourage the filing of successive applications for recall of a witness under this provision."
Allowing the appeal, the bench set aside the High Court order and dismissed the application filed by the Prosecutor for summoning the witness.